December 3, 2006
Seeking Common Ground Between Media Educators & Industry on Fair Use

C3 provides a great opportunity to develop dialogue between media scholars and media professionals, something that has thrived in face-to-face meetings at MIT and elsewhere. While this blog seems not to have generated much dialogue and interaction across this divide (at least that I've seen), I offer the following commentary (both here and cross-posted on the newsletter) to provoke discussion, as it's a topic that needs input from multiple sides, and thus I encourage feedback and commentary to flow from these thoughts.

If there is one issue where I feel the perspectives of academic researchers and educators greatly diverge with the interests and policies of the media industries (at least as publicly stated), it is copyright. The media industries have been aggressively framing their copyrights as owned property, demanding control over all uses and successfully lobbying for legislation to protect ownership rights over all others. Media scholars are typically both copyright holders and active users of copywritten materials, so we can (ideally) see the perspectives of both creators and users - I certainly want to protect some rights to my writings, ensuring proper credit and (modest) compensation for using my work. But I am a dependent practitioner of fair use, the right to use copywritten material without permission for certain purposes such as criticism, parody, and education. Without fair use, I could not quote a book in my own research, show a clip from a television show in class, or assign students to make parodies of movie trailers, all practices that I see as integral parts of my role as a media scholar.

Traditionally, courts have protected such fair use rights over industry objections, but Congress managed to legislate around these rights in 1998 with the DMCA - this act mandated that users could not legally circumvent copy protections (like the DRM system on all commercial DVDs), even if the purpose was protected by fair use. As the film and television industries have switched to DVD as their only format, consumers were denied our fair use rights to make clips for educational use, backup discs in a personal collection, and create parody videos, escalating the hostility between media users and owners. As an educator, this restriction effectively says I can only teach material following the limits dictated by DVD technology. Thankfully, the U.S. Copyright Office last week issued a ruling (which I blogged about) allowing film & media faculty to override DVD protections to make in-class clips - a great allowance, but still one much more limited than fair use.

It has always struck me as exceedingly short-sighted for the industry to push for such clamping down of educational fair use, as media educators train the next generation of filmmakers, television programmers, advertising executives, and (most importantly) media consumers. Why would the industry want to restrict educational practices that primarily teach students how to consume and create the very products that they wish to sell? I see two potential explanations: the more distressing explanation is that the industry's lawyers & owners believe that copywritten material is truly property that must be protected from all non-paying intruders, controlled at every turn, and consumers abilities to assert control of any potential uses is merely an inconvenience to be overcome via legislation, DRM, or litigious intimidation. The more generous explanation is that the industry recognizes that many uses promote consumer engagement, education, and investment, but that they see the danger of circumvention software as too powerful to allow it to be legitimized no matter the use. The industry actively argued against the request made on behalf of film professors to be able to clip DVDs, so clearly nobody is unaware of the potential benefits and legitimacy of such usage - but I'm not sure if it's a case of paranoid protectionism or fear of a slippery slope.

So I turn the question to our industry partners in C3 - your participation in this group suggests that you recognize the ways that media scholars and producers can cooperate and work toward common goals. We preach the power of active audiences and participatory culture, practices that depend on fair use and productive consumers. So how do you view fair use within your business models? Do the strategies of lobbying and litigation pursued at the top of your industries represent more broadly held attitudes toward copyright, or is there dissent and diversity of opinions within the media industries that do not come to light in a public forum? Do you see strategies by which media educators can better make the case for the importance of fair use not only to our own efforts, but to fuel media consumption, audience engagement, and the education of future creators? I would like to see our partnership generate productive and innovative solutions to these problems and I look forward to hearing any thoughts you might have.


On December 7, 2006 at 11:56 AM, Cambridge Teacher said:

I am an educator of Media Technology at Cambridge Rindge and Latin HS. In my TV Production classes, I have been very strict about my students creating entirely original work, from concept to completion, particularly with use of music. However, this presents an enormous challenge as a classroom teacher of media dealing with teenagers who live, eat and breathe pop culture. I of course believe any media message (including the music and images) they could create on their own would be more powerful in their own voices rather than using borrowing the legacy of a rap song or pop music, but in order for them to choose how to become responsible and skilled media makers, they must watch, listen to and analyze a variety of existing media, and lots of it.

I know many schools who let the kids create video using whatever copyrighted materials they like, and I so understand the conflict. 1. These students eat, live breathe and REPRESENT pop culture and therefore want to incorporate these popular images and sounds into their work. 2. Most of us are not composers who can whip out a tune for the purposes of a learning activity 3. There are extremely limited sources for relevant material in the public domain, or in fair use.

Furthermore, copyright was originally intended to protect the artist, not to be profitable.

These laws certainly do add a lot of extra work to an educators already demading job, but I also believe I am teaching these students more creative ways to think and create independently - a skill most of them are not coming in with.

That is my hope anyway - on the bright side.

On December 8, 2006 at 10:17 AM, Sam Ford said:

Fair use is always tricky, and you properly point out that it's a problem within the industry as much as it is without. For instance, I wanted to show clips of a Media Education Foundation video but did not want to use the whole thing and found that the particular documentary I wanted to use a clip from in class at one point was copyright protected. And I've heard horror stories of professors not being able to distribute material from their own books legally, when trying to do everything above board in preparing materials for class.

You know very well that, should you make students buy every book that has every essay you wish to use in a class, the student might end up with thousands of dollars worth of book fees for one class, all to have an essay or chapter each out of dozens of books.

And that educational documentaries are pulling the same stunts with DRM makes me feel that it's going to be hard for those outside academia to recognize the importance of quoting and clipping when educational institutions can't with their own media.

That being said, have you read the public policy report entitled "Will Fair Use Survive?" by Marjorie Heins and Tricia Beckles from the Brennan Center for Justice at the NYU School of Law? Definitely work taking a look at for anyone interested in fair use questions. Henry passed it along to us last year for one of his classes.